MEMORANDUM AND ORDER

KATHRYN VRATIL, District Judge

Francisco Jose Reyes brings suit against the Board of County Commissioners of Sedgwick County Kansas ("the Board"), Sheriff Gary Steed and Undersheriff Robert Hinshaw under 42 U.S.C. § 1983 and Kansas common law. Specifically, plaintiff alleges violations of the Fourth and Fourteenth Amendments, false imprisonment and negligence. This matter comes before the Court on Defendants' Motion For Summary Judgment (Doc. #33) filed March 13, 2008. For reasons stated below, the Court finds that defendants' motion should be sustained in part.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence.Id. at 252.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

The Court must view the record in a light most favorable to the parties opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.

Factual Background

The following material facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.

On November 18, 2005, Phillip Gallegos, a Colorado State Trooper, stopped plaintiff Francisco Jose Reyes for speeding in a construction zone in Arapahoe County, Colorado. Plaintiff did not have a valid driver's license, but he produced a Kansas identification card (No. K00951769) which identified him as Francisco J. Reyes with a birth date of October 10, 1972. See Gallegos Depo. at 14-15, attached as Ex. A to Defendants' Memorandum In Support Of Motion For Summary Judgment ("Defendants' Memorandum") (Doc. # 34). Gallegos contacted the Colorado State Patrol Dispatch Center to check for outstanding warrants on Francisco J. Reyes with that birth date and Kansas identification number K00951769. The dispatcher informed Gallegos that Sedgwick County, Kansas had an outstanding rape warrant for a Francisco J. Reyes with the same Kansas identification card number. The dispatcher told Gallegos that "a number of different names" were associated with the warrant. See id. ¶ 7. The dispatcher also told Gallegos that plaintiff's birth date matched one of several birth dates which the fugitive used. Gallegos determined that plaintiff had a scar on his right arm, which was one of the identifying descriptors for the fugitive. Plaintiff told Gallegos that he was not the person sought in the warrant, but Gallegos arrested him and transported him to the Arapahoe County jail.

The Arapahoe County jail received a printout from the Federal Bureau of Investigation National Crime Information Center ("NCIC") on the Sedgwick County warrant. It showed nine aliases attributed to the warrant. See NCIC teletype, attached as Ex. 34-9 toDefendants' Memorandum, At the jail, the booking officers asked plaintiff what name he went by and discussed among themselves the large number of aliases or alternate names attributed to the Sedgwick County warrant. The receiving deputy confirmed that plaintiff had the same first name, middle initial and surname as set out in the warrant; that plaintiff's birth date was one of six alias birth dates which the fugitive used; and that plaintiff's Kansas identification card number and social security number matched numbers linked to the fugitive. See Nesvold Affidavit ¶¶ 7-14; attached as Ex. D to Defendants' Memorandum, Booking Report, attached as Ex. G to Defendants' Memorandum; NCIC Warrant Teletype dated November 18, 2005, attached as Ex. E toDefendants' Memorandum.

The Arapahoe County booking report listed plaintiff's name as Francisco Jose Reyes. No name or alias in the NCIC printout included the middle name Jose, but several of them included the name Javier. The booking report listed plaintiff's height and weight as 5'10" and 185 pounds, while the NCIC printout showed the fugitive's height and weight as 5'6" and 145 pounds. The printout listed Nicaragua as plaintiff's birthplace and Mexico as the fugitive's birthplace. The booking report listed plaintiff's social security number as XXX-XX-3998, one of three social security numbers which the NCIC attributed to the warrant.

On November 21, 2005, a Sedgwick County sheriff's deputy faxed the warrant to Diane Shouse, the Arapahoe County fugitive warrants clerk. That same day, Shouse obtained NCIC printouts for Francisco J. Reyes and Francisco R. Carillo, an alias on the Sedgwick County warrant. The warrant contained only the birth date of October 10, 1963 and the social security number of XXX-XX-7513 — neither of which belonged to plaintiff. See Warrant, attached as Ex. I to Defendants' Memorandum. The NCIC printout for plaintiff correctly listed a birth date of October 10, 1972, a height of 5'9", a weight of 190 pounds and the birthplace of Nicaragua.

The NCIC printout for Francisco R. Carillo (one of the aliases on the warrant) listed a birth date of October 10, 1962 (an "alternative" birth date on the warrant); a height of 5'6"; a weight of 145 pounds; Mexico as the place of birth; and a social security number of XXX-XX-7513 (the same social security number as the Sedgwick County rape warrant). Shouse compared plaintiff's information with that provided for the fugitive. The booking report identified plaintiff's middle name as Jose, and the warrant listed the fugitive's middle name as Javier. The booking report also listed plaintiff's birth date as October 10, 1972, while the warrant provided the fugitive's birth date as October 10, 1963. Because of these discrepancies, Shouse spoke to her supervisor. She nonetheless was satisfied that plaintiff was the fugitive identified in the warrant, so she completed the case and sent it to the District Attorney.

On November 22, 2005, plaintiff appeared in Arapahoe County District Court with his public defender, Chris Baumann. Baumann gave the court a written Advisement of Rights in which plaintiff acknowledged that he understood his rights, including the right to challenge the legality of the arrest and contest extradition.See Affidavit of Stephen Fauver ¶ 9, attached as Ex. J toDefendants' Memorandum; Advisement of Rights, attached as Ex. K to Defendants' Memorandum, Baumann told the court that plaintiff was voluntarily waiving extradition and gave the court an executed waiver of extradition. See Transcript of Hearing, attached as Ex. N toPlaintiff's Memorandum; Waiver of Extradition, attached as Ex. L to Plaintiff's Memorandum. Plaintiff and Baumann did not claim that plaintiff was not the person named in the warrant. In fact, plaintiff never told his attorney that he was not the person named in the warrant; he simply said that he wanted to waive extradition to Kansas.

On November 22, 2005, Arapahoe County notified the Sedgwick County Sheriff's Department that plaintiff had waived extradition. Sedgwick County did not send mug shots or fingerprints to Arapahoe County because Arapahoe County did not request them and the Sheriff's Department interpreted plaintiff's waiver of extradition as a concession that plaintiff was the person named in the warrant. See Hinshaw Depo. at 54, 117-19, attached as Ex. O to Defendants' Memorandum.

On December 1, 2005, two Sedgwick County deputies transported plaintiff to Sedgwick County on a county-owned airplane. During the flight, plaintiff did not complain of mistaken identity. The deputies took plaintiff to the Sedgwick County jail, where they booked him. Plaintiff testified about the booking process as follows:

Q. As to any of the folks that you talked to them, . . . did you tell them that "you got the wrong guy; I'm not the correct Francisco Reyes?"

A. Yes. . . . The finger — The ones that did my fingerprints, I told them I am not this guy.

Q. What did they say?

A. They said, "Well, the faster we get this done, the faster you go to population." . . . I wanted to go get a bed because I was sleeping on the floor at the holding tank. . . . So I went ahead and signed it just to get a cell.

At approximately 1:40 p.m. on December 2, 2005, plaintiff made his first appearance in Sedgwick County District Court. At that hearing, plaintiff did not protest his innocence or allege mistaken identity to either the court or the District Attorney.

After his first appearance on December 2, 2005, plaintiff prepared an inmate request form commonly called a KITE. On the form next to his name, plaintiff wrote "DOB 10-10-72" and his social security number. The request stated "I would like to talk to the Detective about my case because this Francisco Javier Reyes is not me." Under "Franciso Javier Reyes," plaintiff wrote "10-10-63" (the birth date of the fugitive) and the social security number listed on the warrant. Plaintiff's Depo. at 243, attached as Ex. C to Defendants' Memorandum; Inmate Request Form 12/2/05, attached as Ex. R to Defendants' Memorandum.

The inmate request form is a carbonless three-copy form for inmates to address concerns to staff, courts, detectives or the commissary. Under Sedgwick County jail procedures, an inmate fills out the form and gives it to the pod deputy. The pod deputy initials the form, dates it, gives one copy back to the inmate and sends the other two copies to the inmate coordinator, who decides how to proceed. If the deputy can handle the inmate's concern or issue, he or she may do so even if the KITE is addressed to a ranking officer. See Hairston Depo. at 15-24, attached as Ex. U to Defendants' Memorandum. The official who receives the form writes a response, keeps a copy and sends the remaining copy back to the inmate. See Hinshaw Depo. at 40-41; 46-48, attached as Ex. O toDefendants' Memorandum. The instructions on the form direct the inmate to follow up with the watch supervisor if he does not receive a satisfactory response.

On December 2, 2005, plaintiff gave his inmate request form to Deputy Lanetta Hairston. She placed her identification number and date on the request. Hairston does not recall plaintiff or specifically remember taking his request form, but she is certain that she placed the request in the inmate coordinator's bin and she presumes that the inmate coordinator properly processed the request. Hairston Depo. at 2, 15-24, attached as Ex. U toDefendants' Memorandum,

The rape warrant did not identify the law enforcement agency which initiated or investigated the case. Neither the Sheriff's Department or the Wichita Police Department contacted plaintiff in response to his inmate request, however, and plaintiff did not follow up with the watch supervisor when he did not get a response. See plaintiff's Depo., attached as Ex. C to Defendants' Memorandum, at 246.

According to Undersheriff Hinshaw, jail personnel should obtain a fingerprint comparison if there is a question about an inmate's identity. Mug shots and fingerprints are generally available, but the fugitive fingerprints in this case were not immediately accessible because they were in the file of the city detective who originally handled the rape case. Also, because the mug shot for the fugitive was not digital, the Sheriff's Department could not view it on the computer system when it processed plaintiff.See Investigation Report Of Major Hinshaw at 5, attached as Ex. P to Defendants' Memorandum.

At his deposition, Sheriff Steed was initially unsure whether his department had a specific policy on how to determine if a person booked on a warrant is, in fact, the right person. Steed Depo. at 15, attached as Ex. Y to Defendants' Reply (Doc. # 49) filed May 22, 2008. He testified that the department has so many policies that he can not remember them all, but he later acknowledged that the department has written policies which pertain to identification of persons being booked. In fact, Sheriff's Office Policy 103.02 provides as follows: "If there is any doubt about the identity of a person, conflicting data, or insufficient information on the Journal Entry, the Booking Sergeant will be contacted." See General Order, attached as Ex. V to Defendants' Memorandum. Sheriff's Office Policy 107.00 also provides that when an inmate's identity is not "immediately verifiable," he or she may be accepted under the name of "John or Jane Doe." It further provides that the Records Section will be notified and a set of fingerprints will be taken to make a positive identification. See General Order, attached as Ex. W to Defendants' Memorandum.

Undersheriff Hinshaw testified that unwritten policy and deputy training in the Sheriff's Department require reasonable measures to verify that the correct person is in custody. See Hinshaw Depo. at 12-13, 76-77, attached as Ex. O to Defendants' Memorandum; Investigation Report of Major Hinshaw at 5-6, attached as Ex. P to Defendants' Memorandum. Sergeant Nelson testified that "if somebody says they ain't the person . . . you kind of check to see pictures or mugs[.]" Nelson Depo. at 47, attached as Ex. X to Defendant's Memorandum.

Some time after plaintiff's first appearance, his family retained private defense counsel. Between December 6 and 15, 2005, the public defender and/or private counsel visited plaintiff six times. Neither attorney brought any mistaken identity to the attention of the Sheriff's Department. See Investigation Report of Major Hinshaw, attached as Ex. P toDefendants' Memorandum at 6. On December 15, however, one of plaintiff's attorneys told the assistant district attorney about the mistaken identity. Later that day, defendants released plaintiff.

During his two-week detention, except through the inmate request form and his statement to the booking technician, plaintiff made no effort to notify the Sheriff's Department of the mistaken identity. See Plaintiff's Depo. at 248-49, attached as Ex. C to Defendants' Memorandum. Plaintiff prepared additional inmate request forms on December 7 and 9, 2005, requesting items from the commissary. Neither request mentioned mistaken identity.

Sheriff Steed and Undersheriff Hinshaw had no direct contact with plaintiff during his detention.

In February of 2006, law enforcement officials in Pensacola, Florida informed the Sheriff's Department that they had arrested the fugitive on a drug charge on August 26, 2005, and released him on time served on January 3, 2006.

Under 42 U.S.C. § 1983, plaintiff claims that in his official capacity, Sheriff Steed-by detaining him for two weeks on an arrest warrant for another man — violated (1) his right to be free of unreasonable government seizures under the Fourth Amendment and (2) his right to substantive due process under the Fourteenth Amendment. Defendants assert that the Board is entitled to summary judgment on plaintiff's Section 1983 claims because it is not responsible for the Sheriff's conduct. Defendants also argue that Sheriff Steed is entitled to summary judgment because (1) plaintiff had no constitutional right to a post-arrest investigation; (2) plaintiff cannot show that the Sheriff's policy or custom caused a constitutional violation and (3) plaintiff cannot show that Sheriff Steed acted recklessly or was grossly negligent in a supervisory capacity.

Under Kansas common law, plaintiff asserts that the Board, Sheriff Steed and Undersheriff Hinshaw (1) falsely imprisoned him for two weeks on an arrest warrant for another man and (2) negligently failed to train staff to identify persons named in warrants. Defendants assert that they are entitled to summary judgment on plaintiff's false imprisonment claim because (1) plaintiff's detention was lawful or (2) they are entitled to immunity under the discretionary function exception, K.S.A. § 75-6104(e). Defendants assert that they are entitled to summary judgment on plaintiff's negligence claim because negligent conduct which results in false arrest or imprisonment only gives rise to a cause of action for false arrest or imprisonment.

Analysis

I. Section 1983 Claims A. Eleventh Amendment Issues

Plaintiff does not assert a Section 1983 claim against anyone but Sheriff Steed in his official capacity. In all respects other than name, an official-capacity suit is a suit against the entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985); Moore v. City of Wynnewood, 57 F.3d 924, 929 n. 4 (10th Cir. 1995). It is not entirely clear, however, whether Sheriff Steed is an officer of the county or of the State of Kansas. See Moore v. Bd. of County Commr's of Leavenworth County, 470 F. Supp. 2d 1237, 1255-56 (D. Kan. 2007) (comparing Bd. of County Comm'rs of Lincoln County v. Nielander, 275 Kan. 257, 261 (2003) (sheriff is state officer whose duties, powers and obligations derive from legislature), with Schroeder v. Kochanowski, 311 F.Supp.2d 1241, 1249 n. 23 (D. Kan. 2004) (rejecting argument that sheriff is state official and that Eleventh Amendment therefore bars claim against him). If Sheriff Stead is an officer of the county, an official capacity suit against him is equivalent to an action against the Board of County Commissioners, i.e. the County. See id. at 1245 n. 17 (official capacity claims against sheriff equivalent to action against county). On the other hand, if Sheriff Steed is an officer of the State of Kansas, an official capacity suit against him is equivalent to an action against the State, and the Court must examine whether the Eleventh Amendment bars plaintiff's official capacity claims against him.

To determine whether Sheriff Steed is an arm of the State, the Court must conduct a four-factor inquiry, taking into account (1) how the entity is characterized under state law; (2) the entity's degree of autonomy; (3) the sources of the entity's operating funds; and (4) whether the entity deals primarily with local or state concerns. Steadfast Ins. Co. v. Agric. Co., 507 F.3d 1250, 1252-53 (10th Cir. 2007); see Ambus, 975 F.2d at 1561-62. InMcMillan v. Monroe County, 520 U.S. 781 (1997), the Supreme Court applied a similar four-part test to determine whether a sheriff is a state or county policymaker for purposes of Section 1983 municipal liability. The Supreme Court stressed that the question is not whether the sheriff acts for the state or the county in some categorical, "all or nothing" manner, but rather whether the sheriff acted for the state in a particular area, or on a particular issue. Id. at 785. Here, the inquiry focuses on whether Sheriff Steed represented the State or the county when he determined policy for identifying and detaining prisoners on warrants issued from Sedgwick County.

As for the first factor, how state law characterizes the sheriff, plaintiff cites Kansas cases and statutes which indicate that sheriffs are county rather than state officials. Indeed, K.S.A. § 25-101 lists positions which are historically considered "county offices," including the county sheriff. See Wall v. Harrison, 201 Kan. 600, 603-04 (1968). The county has authority to establish a jail, K.S.A. § 19-1901, and the sheriff has charge and custody of the jail of his county, see K.S.A. § 19-811. If a county has no sheriff, the county clerk performs the statutory duties of the office. See K.S.A. § 19-804a.

As for the second factor, the degree of the sheriff's autonomy from the State, the Kansas Supreme Court in Nielander noted that county sheriffs enjoy autonomy in personnel decisions within their departments, and the sheriff has charge of the county jail.See 275 Kan. at 263; K.S.A. § 19-811. Defendant points out that the Kansas Attorney General (and the county attorney) may initiate an action to oust a sheriff for failure to perform law enforcement functions. See K.S.A. §§ 8-605 and 60-1202. Further, the sheriff must accept and take possession of prisoners committed by a judge of any city or county. See K.S.A. §§ 19-1916, 19-1930; see also K.S.A. § 19-1917 (sheriff required to jail fugitives from another state or territory). Kansas courts across the state may direct sheriffs to issue process and writs, bring prisoners before them and incarcerate individuals. See,e.g., K.S.A. § 19-812 (sheriff to serve and execute all lawful process, writs, precepts and orders); K.S.A. § 20-107 (sheriff to issue Kansas Supreme Court process and writs); K.S.A. § 20-363(a) (sheriff to serve process for district courts); K.S.A. § 22-3427 (sheriff to confine prisoners); K.S.A. § 43-166 (sheriff to serve jury summons). On balance, however, it appears that in setting policy for the county jail and — in particular — setting policy for identifying and detaining prisoners on warrants from Sedgwick County, the sheriff of Sedgwick County enjoys significant autonomy from state control.

The third factor, the source of the sheriff's operating funds, clearly supports a finding that the sheriff is not an arm of the State. By statute, the board of county commissioners must approve the sheriff's annual budget, and the county — not the State — provides operating funds for the sheriff. See K.S.A. § 19-805(a), (b), (c). Also, the sheriff may collect revenue for the county for housing the prisoners of municipalities. K.S.A. § 19-1930.

As for the fourth factor, whether the sheriff deals primarily with local or state concerns, Kansas statutes authorize sheriffs and their deputies to conduct law enforcement activities within their counties; they may act elsewhere in the state only in fresh pursuit of a suspect or if another agency requests assistance.See K.S.A. § 22-2401a(1). By contrast, Kansas Bureau of Investigation agents and Kansas Highway Patrol troopers exercise law enforcement powers anywhere in the State. The geographical limitation on a county sheriff's law enforcement powers suggests that the office is local in nature. See Eames v. Bd of County Comm'rs of Phillips County, 733 F.Supp. 322, 324 (D. Kan. 1990) (sheriff and deputies are employees of county they serve). As noted, the sheriff must accept into the county jail prisoners from other counties and states. Such prisoners are not local concerns, but for purposes of operating the jail and setting policy for identifying and detaining prisoners on warrants from Sedgwick County, it appears that the sheriff primarily deals with local concerns.

Based on the foregoing four factors, the Court finds that for purposes of setting policy for identifying and detaining prisoners on warrants from Sedgwick County, the sheriff acts as an arm of the county, and not the State. As such, he is not entitled to Eleventh Amendment immunity. Cf. Nielander, 275 Kan. at 261 (position of sheriff coextensive with county board; each functions as local political entity established through enabling legislation with neither being subordinate to other). Id.

To the extent that Sheriff Steed is considered an officer of Sedgwick County, plaintiff's official capacity claim against him is actually a claim against Sedgwick County. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 n. 55 (1978) (official capacity suits simply another way of pleading action against entity of which officer is agent). The Court therefore treats the claim as one against Sedgwick County, and it need not further address the question of Eleventh Amendment immunity.

B. Plaintiff's Section 1983 Claim Against The County

Municipal liability under Section 1983 does not automatically spring from the acts of municipal employees, Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986), but results when the municipality itself causes the wrong. Such wrongs may arise from official policy, e.g. "acts which the [county] has officially sanctioned or ordered," or from the act of an ultimate county decision-maker. Pembaur, 475 U.S. at 479-80. To create liability against a local governmental body under Section 1983, plaintiff must show (1) a constitutional violation and (2) an official policy or custom which was the moving force behind the violation.City of Oklahoma City v. Tuttle, 471 U.S. 808, 820 (1985)). The challenged policy or custom need not be formal or written, Watson v. City of Kansas City, 857 F.2d 690, 695 (10th Cir. 1988), but plaintiff must establish a direct causal link between the government action and the deprivation of federal rights. Bd. of County Comm'rs v. Brown, 520 U.S. 397, 404 (1997) (must demonstrate that unconstitutional actions resulted from policy or custom adopted or maintained with deliberate indifference to constitutional rights).

The Board asserts that it is entitled to summary judgment because plaintiff does not have the right to a post-arrest investigation under the Fourth Amendment or the substantive due process guarantees of the Fourteenth Amendment. The Board also argues that even if plaintiff had such rights, he has not raised a genuine issue of material fact whether the County violated those rights. See Myers v. Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 1316-17 (10th Cir. 1998) (regardless of governmental policies, no liability where officers inflict no constitutional harm); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) (to establish cause of action under Section 1983, plaintiff must prove deprivation of federal right).

1. Constitutional Violation

As a preliminary matter, the Court notes that the law is not clear as to the appropriate constitutional provision under which plaintiff's Section 1983 claims are properly analyzed. Cf. Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007) (case required court to "wade into murky waters" of Section 1983 malicious prosecution claims). Plaintiff's constitutional claims are predicated on factual argument that defendants detained him for two weeks on an arrest warrant for another man. In Romero v. Fay, 45 F.3d 1472, 1480 (10th Cir. 1995), the Tenth Circuit invoked the Fourteenth Amendment in analyzing a Section 1983 claim that defendants denied plaintiff the right to a reasonable post-arrest investigation after they arrested and detained him, without a warrant, based on mistaken identity. Although Romero involved a warrantless arrest, and plaintiff here was arrested on a warrant, officers in both cases had probable cause for the arrest. Romero thus suggests that plaintiff's claim of unlawful pretrial detention is within the ambit of the Fourteenth Amendment and is not properly analyzed under the Fourth Amendment.

On the other hand, in Baker v. McCollan, 443 U.S. 137, 143 (1979), the Supreme Court dismissed a Fourteenth Amendment claim that defendants had intentionally failed to "investigate and determine that the wrong man was imprisoned." Id. In Baker, plaintiff's brother was masquerading as plaintiff and a judge issued an arrest warrant for the brother in plaintiff's name. Police arrested plaintiff, despite his protests of mistaken identity, and held him for three days before they discovered that he was the wrong person. Plaintiff claimed that the county sheriff had denied him rights pursuant to the Fourteenth Amendment. Id. at 141. The Supreme Court disagreed, holding that the plaintiff had not established the deprivation of a constitutional right. Because plaintiff focused exclusively on his prolonged detention without adequate identification procedures, the Supreme Court presumed that plaintiff asserted a violation of Fourteenth Amendment protections against deprivations of liberty without due process of law. Id. The Supreme Court held that as a matter of law, plaintiff's confinement for three days in the county jail did not deny him liberty without due process. It reasoned as follows:

The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished "without due process of law." A reasonable division of functions between law enforcement officers, committing magistrates, and judicial officers — all of whom may be potential defendants in a § 1983 action — is entirely consistent with "due process of law." Given the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence, whether the claim is based on mistaken identity or a defense such as lack of requisite intent. Nor is the official charged with maintaining custody of the accused named in the warrant required by the Constitution to perform an error-free investigation of such a claim. The ultimate determination of such claims of innocence is placed in the hands of the judge and the jury.

The scenario which Baker anticipated in dicta came before the Tenth Circuit in Romero, which involved protracted detention and repeated protests of innocence sufficient to invoke a Fourteenth Amendment — rather than a Fourth Amendment — analysis. InRomero, an officer arrested Romero based on interviews with two women who implicated him in a homicide. 45 F.3d at 1474. Romero repeatedly professed his innocence and named witnesses who could exonerate him. The officer refused to interview any of the witnesses, however, and defendants held Romero for three months before they asked prosecutors asked to dismiss the charge. Id. Romero filed a Section 1983 action alleging violations of his Fourteenth Amendment rights. Id. Specifically, he contended that defendants violated his federal constitutional rights by conducting an unreasonable post-arrest investigation and falsely imprisoning him for three months when he repeatedly protested his innocence. The Tenth Circuit disagreed, holding that plaintiff had not alleged a constitutional violation. The Tenth Circuit noted that a police officer does not violate the Fourteenth Amendment merely by arresting an individual who happens to be innocent. Id. at 1480 (citing Baker, 443 U.S. at 145) (Constitution does not guarantee that only guilty will be arrested); See also Edwards v. Baer, 863 F.2d 606, 607 (8th Cir. 1988) (mere fact of invalid arrest does not ordinarily convert common law tort of false arrest or false imprisonment to violation of constitutional right). Instead, to state a claim for violation of Section 1983, plaintiff must specifically allege that the government official acted with deliberate or reckless intent to falsely imprison him. Romero, 45 F.3d at 1480. The Tenth Circuit found that at most plaintiff had shown negligent conduct, not deliberate or reckless intent to falsely imprison him. Id. at 1481.

In cases which allege deprivation of rights by post-arrest detention, at least two circuits have analyzed the claims under the Fourth Amendment. In Lee v. City of Los Angeles, supra, Kerry Sanders alleged that defendants violated his Fourth and Fourteenth Amendment rights when they arrested him on a warrant for Robert Sanders and held him for two years without a hearing. The district court dismissed both constitutional claims under Rule 12(b)(6). The Ninth Circuit reversed, finding that plaintiff stated both a Fourth and a Fourteenth Amendment claim. As to the Fourth Amendment claim, defendants lacked probable cause to arrest plaintiff because no reasonable police officer could have believed that Kerry Sanders was the same person as Robert Sanders. Lee, 250 F.3d at 684. Moreover, defendants "recklessly and with deliberate indifference" to plaintiff's constitutional rights failed to check fingerprints and other characteristics and compare them to those of Robert Sanders. See id. at 668. As for the Fourteenth Amendment claim, the Ninth Circuit relied upon dicta from Baker that depending on what procedures the state afforded defendants following arrest and prior to trial, detention pursuant to a valid warrant "after the lapse of a certain amount time" gives rise to a due process claim under the Fourteenth Amendment. See id. at 683 (quoting Baker, 443 U.S. at 145).

In Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir. 2007), the Second Circuit found that an officer violated plaintiff's Fourth Amendment rights by withholding and concealing exculpatory evidence that plaintiff, who had been arrested pursuant to valid warrant, was not the person who committed the crime. The Second Circuit found that while plaintiff remained incarcerated for 217 days, police violated a duty "to investigate specific, readily-verifiable claims of innocence in a reasonable time period" by intentionally failing to view a videotape which conclusively exonerated plaintiff. Id. at 209. Although plaintiff alleged violation of a substantive due process right under the Fourteenth Amendment, the Second Circuit found that the right should be analyzed under the Fourth Amendment, see Graham v. Connor, 490 U.S. 386 (1989), because it provided an explicit textual source of constitutional protection against the particular sort of government behavior involved in that case.Russo, 479 F.3d at 208. More specifically, the Second Circuit found that when an accused is physically detained following arraignment, he has been seized within the meaning of the Fourth Amendment. See id. (citing County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) ( Fourth Amendment seizure occurs when government terminates freedom of movement through means intentionally applied); Albright, 510 U.S. at 274 ( Fourth Amendment addresses pretrial deprivations of liberty). Citing the length of time of wrongful incarceration, the ease with which officers could have checked the exculpatory evidence and the alleged intentionality of their behavior, the Second Circuit determined that plaintiff had sufficiently alleged an unreasonable seizure, i.e. an intentional violation of — or deliberate indifference to — his constitutional rights. Russo, 475 F.3d at 209. The Second Circuit concluded that the evidence of shocking conduct on the part of the officers was sufficient to preclude a grant of summary judgment in their favor on plaintiff's unreasonable seizure claim.

Bearing these cases in mind, the Court now addresses whether plaintiff has set forth evidence that the County violated his constitutional rights under the Fourth or Fourteenth Amendment.

a. Fourth Amendment

Plaintiff claims that by detaining him in the Sedgwick County jail for two weeks on a warrant for another man, the County (through Sheriff Steed in his official capacity) violated his Fourth Amendment right to be free from unreasonable seizures. The County asserts that it is entitled to summary judgment because (1) plaintiff had no Fourth Amendment right to a post-arrest investigation; (2) if he had such a right, plaintiff has not shown that any defendant violated it and (3) plaintiff cannot show that county policy or custom caused the violation.

As noted, plaintiff asserts that the custom or policy of the Sheriff's Department violated his rights under the Fourth Amendment. In other words, plaintiff asserts that defendant is liable because the custom or policy of the Sheriff's Department was the driving force behind the constitutional violation, i.e. that jail personnel implemented a policy or custom of detaining persons arrested on warrants without investigating claims of mistaken identity, and that the execution of this policy or custom inflicted the injuries of which he complains. A local governing body may be directly liable under Section 1983 where the unconstitutional action implements a policy of the government entity. See Garcia v. Salt Lake County, 768 F.2d 303, 307 (10th Cir. 1985) (when execution of governmental policy or custom inflicts injury, government as entity is responsible under Section 1983).

Although the general standard for a Fourth Amendment violation is reasonableness, the Tenth Circuit and other courts have found that to establish a Section 1983 claim for false arrest, plaintiff must show that defendant acted with deliberate or reckless intent to falsely imprison him. See Romero, 45 F.3d at 1478, 1480-81 (negligent failure to conduct post-arrest investigation did not render arrest unreasonable); Russo, 479 F.3d at 209-210 (requiring intentional violation or deliberate indifference which "shocks the conscience" as crucial feature going to unreasonableness of the seizure); see also Lee, 250 F.3d at 684 (applying "recklessly and with deliberate indifference standard" to unreasonable seizure claim). Under this standard, plaintiff has not shown that the County violated his Fourth Amendment rights.

Plaintiff asserts that Sheriff Department employees acted with deliberate indifference to "a very real, very tangible likelihood" that he was not the wanted man and that their failure to conduct a fingerprint comparison evinces a patent disregard of his Fourth Amendment rights. To succeed on his theory of liability, however, plaintiff must show that the employees' conduct was pursuant to municipal policy, and that the policy was deliberately indifferent to the risk of a constitutional violation. See Garcia, 768 F.2d at 309. As noted, the Sheriff's Department has written policies pertaining to identification of detainees. Those policies include (1) "[i]f there is any doubt about the identity of a person, conflicting data, or insufficient information on the Journal Entry, the Booking Sergeant will be contacted" and (2) "when an inmate's identity is not `immediately verifiable,' he or she may be accepted under the name of "John or Jane Doe" and the Records Section will be notified and a set of fingerprints will be taken to make a positive identification." Further, unwritten policy requires reasonable measures to verify that the correct person is in custody, such as checking pictures or mugshots. Although the jail employees apparently did not follow these policies, operational error does not support municipal liability. See Monell, 436 U.S. at 691. It bears noting that plaintiff waived extradition to Kansas and at his extradition hearing never mentioned that he was not the person named in the warrant. Further, at his first appearance within 24 hours after he arrived at the Sedgwick County jail, plaintiff did not tell the judge that he was not the man named on the warrant. Even viewing the record in a light most favorable to plaintiff, the record does not reveal a genuine issue of material fact whether defendant's policy (as opposed to operational error or plaintiff's failure to effectively communicate his claim of mistaken identity) was the driving force behind plaintiff's detention. As a result, plaintiff has not shown a violation of his Fourth Amendment rights.

b. Fourteenth Amendment Substantive Due Process

The Court next addresses plaintiff's claim that the County's failure to conduct a post-arrest investigation violated his Fourteenth Amendment right to substantive due process. Baker rejected a similar claim, holding that the separation of roles precluded any liability against the police officers because the "ultimate determination of claims of innocence" is "in the hands of the judge and the jury." 443 U.S. at 146. This distinction is critical, as Baker acknowledged that a "reasonable division of functions between law enforcement officers, committing magistrates, and judicial officers" is "entirely consistent with due process of law." Id. at 145. Respect for the separation of functions explains why Baker declined to impose on police officers an affirmative duty to investigate claims of innocence and why post-arrest due process guarantees are generally sufficient to protect plaintiff's rights. Brady, 187 F.3d at 11 (citing Baker, 443 U.S. at 145-46).

In Baker, however, the Supreme Court anticipated the "unusual situation" where plaintiff might have a substantive due process claim based on a post-arrest detention. In doing so, it considered (1) the extent of plaintiff's protests, (2) the time elapsed and (3) whether plaintiff received due process procedures. See 443 U.S. at 144-45. Here, plaintiff protested on only two occasions (during booking and in his written inmate request), far fewer times than in Baker, Plaintiff spent 15 days in the county jail — considerably longer than the three days inBaker, but shorter than in many cases which have found no substantive due process violation. See Romero, 45 F.3d at 1474 (three months); Echols, 399 F. Supp. 2d 1201, 1202 (D. Kan. 2005) (25 days); Scull, 236 F.3d at 592 (30 days). Before he arrived at the jail, plaintiff appeared at a hearing and waived extradition without mentioning mistaken identity to either the court or the public defender. Further, within 24 hours of his transfer to Sedgwick County, plaintiff made his first appearance in state district court, where he again failed to mention mistaken identity. Finally, when plaintiff's lawyers explained the mistaken identity to the prosecutor, the Sheriff's Department immediately released him. Given the extent of plaintiff's protests, the length of time and the due process procedures which plaintiff received, the Court finds as a matter of law that plaintiff has not demonstrated a genuine issue of material fact whether defendant violated his substantive due process rights.

II. State Law Claims

Plaintiff has also asserted state law claims for false arrest/false imprisonment and negligence. The Court's subject matter jurisdiction over these claims is predicated on supplemental jurisdiction under 28 U.S.C. § 1367(a). Plaintiff does not assert diversity of citizenship. Because the Court has granted summary judgment on plaintiff's federal claim, the Court will determine whether to exercise its supplemental jurisdiction over the remaining state law claims.

The district court may decline to exercise supplemental jurisdiction over a state law claim if it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). It is within the sound discretion of the district court to exercise supplemental jurisdiction. Medina v. City of Osawatomie, 992 F.Supp. 1269, 1279 (D. Kan. 1998). In the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims. McWilliams v. Jefferson County, 463 F.3d 1113, 1118 (10th Cir. 2006) (quotingCarnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988)).

The Court finds no compelling reasons to exercise supplemental jurisdiction to decide the merits of plaintiff's state law claims. See Thatcher Enters. v. Cache County Corp., 902 F.2d 1472, 1478 (10th Cir. 1990) (notions of comity and federalism demand that state court try its own lawsuits, absent compelling reasons to contrary). In the interest of comity and federalism, the Court dismisses plaintiff's state law claims for false imprisonment and negligence.

IT IS THEREFORE ORDERED that Defendants' Motion For Summary Judgment (Doc. #33) filed March 13, 2008 be and hereby is SUSTAINED as to plaintiff's claims under Section 1983.

IT IS FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims. Plaintiff's state law claims for false imprisonment and negligence are hereby DISMISSED without prejudice.